Mjumi James Banda v ZDA Henan Gouji Development Company Limited (2024/HP/A046) [2025] ZMHC 52 (23 July 2025)

Jl l IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA Jurisdic tion) (Civil BETWEEN: MJUMI JAMES BANDA AND 2024/HP/A046 PR1N1c1PAL 2 3 JUL APPELLANT ZDA HENAN GOUJI DEVELOPMENT COMPANY LIMITED RESPONDENT BEFORE HON MRS JUSTICES. KAUNDA NEWA THIS 23rd DAY OF JULY, For the Appellant For the Respondent Mr Peter Zulu, Mesdames M. Practitioners Mr J. Phiri, Messrs Joseph Chinva Advocates Wamunyima Legal CASES REFERRED TO: JUDGMENT v Jones 1832 110 ER 82 1. Wetherell 2. Printing and Numerical Company v Sampson 1875 LR19 Eq 462 3. Kennedy v Glass 1890 17 R 1085 4. Cope v Rowlands 1836 150 ER 707 5. Way v Latilla 1937 3 ALL ER 759 6. Bigos v Boustead 1951 1 ALL ER 210 7. Sithole v The State Lotteries 8. Holman v Johnson 1975 1 Cowp 341 9. Christopher 1 O. Mutwale v Professional 11. Colgate Palmolive Zambia Inc v Abel Shemu Chuka & 110 others Lubasi Mundia v Sentor Motors Limited 1982 ZR 66 Limited SCZ No 13 of 1984 Board 1975 ZR 106 Services Appeal No 11 of 2005 12. Peter Militis v Wilson Kafuko Chiwela 2009 ZR 41 13. Esquire Roses Limited v ZEGA Limited SCZ Judgment No 3 of 2013 14. Zambia State Insurance Pension Trust v Zambia Extracts Oils and Colourants 15. Hiteshbhai Limited and another 2013/HPC/295 Patel v Agyen-Frempong Kofi and Agyen-Frempong Osei SCZ Appeal 13/2017 ... J2 l6. Richard H. Chama & 213 others v National Pension Scheme 17. Bidvest Food Zambia Ltd and others v CAA l ort and Ex ort Authority Appeal No l of 2018 mp 'P Limited Appeal No 04/2018 Zambia Electricity Supply Corporation 18. Atlantic Bakery Limited Selected Limited v Judgment No 61 of 2018 19. M'membe and the Post and others Appeal No 7 of 2021 Newspapers Limited (in liquidation) v Mboozi LEGISLATION REFERRED TO: 1. The Subordinate Court Act Chapter 28 of the Laws of Zambia 2. The Lands and Deeds Registry Act, Chapter 185 of the La ws of Zambia OTHER WORKS REFERRED TO: 1. Chitty on Contracts 2. Chitty on Contracts Volume l General Principles Volume 2, Specific Contracts, 27th Edition, Sweet & Maxwell, 1999 3. The Law of Agency 6th Edition, by G. H. L Fridman, 1999 1. INTRODUCTION 1.1 This is an appeal against the Judgment of the Subordinate Court of the First Class sitting at Lusaka, which was delivered on 21st May, 2019, and which Court held that the I agreement that the parties had entered into was illegal and unenforceable, and further that the payment of Three Thousand Five Kwacha (K3, 500.00) per Certificate of Title was also unenforceable. 2. PROCEEDINGS BEFORE THE SUBORDINATE COURT 2.1 Before the Court below, the Appellant herein, Mjumi James Banda as Plaintiff, commenced the matter by Default Writ of Summons which was accompanied by an affidavit on 5th October, 2018. 2.2 He claimed: n e o s b o g t t n s i e rn r a e e t n i o s l a d n a a d n a B s e am J . d e s s e s s a i m d u e Mj o t t i m i ny L a t p n m e o m C p o l e v e l · D J G · O U a n n e H ZDA y d b e w y o e n g o n m i e b . 0 , 3 K f t o n e m y Pa i. J -, s u o i r a v e r s l fo e t t i a T f c o fi i g t n r i e s C s e c o r p n e i t c s n i a s s a i j u o n G a n e g H A n D i t Z d a n h a t t s r e d n e u h t n , o s m r o e t s u c n a n e H A t D d Z a e h r t r e v a a d n a s B e m a J i m u , Mj s n o mm u S f o d s e i t h s e u q d e e r t i m i y L n a p m o m C t p n o e l e v e D i uj o G s e m a i d J m l u u j o M y w a p d e t i m y i n L a p m o t C p n o e l m e v e D . d e s s e c o r p e t h a e e h l t t t a i c T f fi o i t r e h C c a e r a fo d n a B t i r t W l u efa e D t h r t f o o p d p e u l s n fi i s h a c w i h t a w i d v fi f e a h t n I . s l a l , e n w s g a i s s t A n o e t s , n s o l C l i t b n d e n g r u n o i r n g i a t b o d g n a n r i fo y l d p e p v a l o s v s n e i c o r e p h t t a d h e t s o p e d e H . t s e r e s v e l i i t S n r i e p o r p r r x fo fe a s T n ty a r r e T p o g r n P i r y fo l p p a n o i t a r e n mu d e e r e r g a , n ) a t A a ty R i Z r ( o h e t u u n A e v a e i R b m a Z ..... •,··,.r , l a K h ( c a y w t K f i F d d n e a r d n u n H e d v n e a S s u o h T e n O f o e v d i n F a s u n o e h e T t n g e n v i e l S , a y t t o r t e p o r p r ) e p . 5 ":' ' ~ e d h t e y s b s e s s e a r s e e t w i a t h r t e p o r ) p 1 ( n l e a T f t o o t a d a h e t d h a e h t t a t a s d n a s B e m a , i J g m n u i Mj r r e r v e a n h i t r u F . 2 . s n e d r a G s e i a t t r a e p o r ) p 1 ( n e T n r g fo i s s t A o n t e s d n e o n C i a t b o y t f i F d d n e a r d n u e H e d r n h a T s u o h n T o e i n t O f a o r e n u m e r . ) 0 . d e , r 5 d a n K h u ( c H a w e K v i F d n a s u n o e h e T t r i h T f t o s l o a c t o t e a v a h g c i h , w h c ) a e . 5 , l K a ( h c a w K d d n e a r i fo l p p a a d n a s i B e m m u a j J M t d a e h s t o p e o d s l s a a t w I . . ) 0 . 0 , l a K h ( c a d w e K r d n u H - J4 2.7 Ground Rent Bills and paid for at a He stated that he obtained Consent to Assign for a further Three (3) properties remuneration of Eight Hundred Kwacha (K800.00) property, bringing the total payable Hundred Kwacha (K2, 400.00). to be paid was Thirty-Three Kwacha (K33, 400.00). Thousand Four Hundred Thus, the total amount due Four to Two Thousand per 2.8 Mjumi James Banda deposed that despite reminders, ZDA Henan Gouji Development Company Limited had neglected or refused to pay him, and he exhibited as 'MJB 1' a copy of the letter of demand that his lawyers wrote to ZDA Henan Gouji Development Company Limited. 2. 9 His averment, was that in response, as evidenced by the letter which was exhibited as 'MJB2', ZDA Henan Gouji Development Company Limited accepted to only pay him Six Thousand Five Hundred Kwacha (K6, 500.00). THE OPPOSITION 2.10 The gist of the opposition, as advanced by Cathryn Mwenda, the Deputy Managing Director of ZDA Henan Gouji Development Company Limited, who deposed to the affidavit in opposition, was that in 2017, ZDA Henan Gouji Development Company Limited engaged Mjumi James Banda as its' agent, to assist it to process of Title Certificates for houses which were· situated in Silverest Gardens Estate in Chongwe. 2.11 As to the terms of agreement between the parties, Cathryn Mwenda's averment was that for every conveyance that JS . a 1 ' up to the stage of obtaining a Mjumi J arn es Band d · d Certificate of T tl £ 1 e or a home owner' he would be paid Three Thousand Fiv H d adding that the agreement was oral. 2.12 Cathryn Mwenda deposed e un red Kwacha (K3, 500.00), that Mjumi James Banda only managed to obtain Two (2) Certificates of Title on 26th September, 2017, and he was paid Seven Thousand Kwacha (K7, 000.00) for the payment was exhibited for obtaining as 'CMl'. the same. The copy of the invoice 2.13 It was denied that there was an agreement the between parties under which remuneration would be paid for assessi ng properties, obtaining State Consent to Assign or obtaining Ground Rent Bills. 2.14 Cathryn Mwenda averred that ZDA Henan Gouji Development Company Limited only agreed to pay Mjumi James Banda Three Thousand Five Hundred Kwacha {K3, 500.00) when he had completed the whole process, and had obtained the Certificates of Title for the specific properties in the Housing Estate. 2.15 Thus,'it was denied that Mjumi James Banda was entitled to be paid as alleged. 2.16 In still deposing, Cathryn Mwenda stated that the services for Mjumi James Banda were terminated as he did not perform according to the agreement, and he was not owed any money by ZDA Henan Gouji Development Company Limited at the time of the said termination. - �. Ir/ 'l'I 1e11v,:1111rn11 1 WIii! I, 1111, 1111 ti,;(,'ll /' l'lllrl IIH: 11:111;1• wllif:)1 w:ll ' · ' f, 1 o 1101.1 oxliihilod 1111 'M , IH2', 1/,J )I\ 11,•tl'I (1 '\ ompnny Llrnll,·d 1101, ,1 I I Miwni ,Jnmc•ri 13,111 I I I , hnd connrmcd 11 1 1 1 Till , . , , < n, nn, I iiri wn11 nf'ter ,. l)f;v,;Juprr)(;tJI '., ll i(illJl It I IH; 1rir11,f1;r wriic;dJly Mj1 ,rni ,J:11mm nuncfo willi in• 1r, on . Y ol>1.n1rwcl 'l'wo (?.) C1;rl ific�lco of ?.,18 Accordingly Limited proponcd . , ,_, cmin ou,11 Dcvolnprncml '7J)A II Cl .. . Comp:Jny to pay Mjumi ,Jarne11 Banda Hix ·1•h,lu:1and fi'ivc I Jund red KwAcha (K6, 500.00) for the work Lhat he had done, and il did nol agree lo be 'indchtcd to Mjumi ,Jame::; BAndn. 2.19 lt war-t alno depoAed with fictitious that Mjumi JamcA Banda had come up figureR which were never agreed bclwecn hirnRelf and ZDA Henan Gouji Devclopmcnl Company • Limited. EVIDENCE LED IN THE COURT BELOW 2.20 During trial, Mjumi James Banda led evidence that ZDA Hcnan Oouji Development Company Limited constructed homcA that it Rold. His testimony was that on 10th June, 20 l. 7, he had received an email from ZDA Hcnan Gouji Development Company Limited, in which it requested him to obtain a Certificate of Title for a buyer. 2.21 Mjumi James Banda stated that it was agreed that upon delivery of every Certificate be paid Three of Title, he would Thousand Five Hundred Kwacha (K3, 500.00), and that he Wlc\S sent a list which had Eighty (80) properlies. I J7 2.22 2.23 given, was that they started with properties, and Mjumi James . The testimony that was also th fi e irst batch of Ten { 10) Banda obtained Two (2) Certificates of Title. However, Mj umi Ja 8 the way and so f h to different stag H' that there we ' me O t e properties es.. 1s testimony re no caveats . mes anda encountered along challenges were only processed was that he had to ensure up . on the properties, check on the ground rent that was payable, have them assessed. and where there were bills to 2.24 It was also Mjumi James Banda's evidence, that he found of the value. Mjumi had been sold some time back, and the for the latest had requested He added that the Zambia Revenue testified certificates that the properties Zambia Revenue Authority reports. valuation gave a bill at Five (5) percent Authority James Banda further tax clearance 2.25 On other testimony One (1) percent Six Kwacha (K166.00), would be applied property, of that, Mjumi James Banda testified card, the Certificate that he gave, it was that one had to pay of the value, plus One Hundred and Sixty­ and that Consent to Assign the that a copy of Title and the that after payment was made, 2.26 In respect would be issued. for. registration of a national receipts for payment for Consent explained documents how long it took before a Certificate He that at the Zambia Revenue Authority, more had to be submitted, and he did not know exactly of Title was issued. to Assign were required. . J8 2.27 With regard to how many Certificates processed Thirteen assessment (10)of them had Consent of Title for, Mjumi James Banda stated ( 13) properties up to the level of that he by the Zambia Revenue Authority, and that Ten to Assign obtained on them. properties e processed . h 2.28 His evidence was further that for Three (3) of the properties, he paid Ground Rent and Consent he worked on Twenty-Six es. 2.29 Then thereafte (26) properti r, Mjumi James Banda received a phone call to Assign fees, adding that from ZDA Henan Gouji Development Company Limited who informed him that they no longer needed his services with respect to the Thirteen (13) properties. 2.30 He stated that One (1) stage had remained before Certificates of Title could be issued for Ten ( 10) of the properties, and for the last Three (3) properties, the process was almost Fifty (50)percent complete. 2.31 In concluding his testimony, Mjumi James Banda testified that he had not received payment for the Twenty-Six (26) properties, and he therefore claimed payment in the sum of Thirty-Three Thousand Four Hundred Kwacha (K33, 400.00). 2.32 Mjumi James Banda when cross examined, stated that he was sent an email by Jean over the work, and that he held two meetings with her at her office in Chongwe. He agreed that no written contract was signed, stating that the parties had a verbal agreement. ... J9 --, 2.33 agreed that he was to be paid Mjumi James Banda further upon delivery, and that he delivered of Title, as well as that he was paid for the work that he did on the two. It was also his evidence, that one paid the fees. Mjumi James Banda acknowledged that he had not adduced any evidence to show that he was entitled to payment. 2.34 On the part of ZDA Henan Gouji Development Company Two (2) Certificates ( Limited, its' witness Mwakoyi Executive Consultant and Operations handled Certificates of Title at ZDA Henan Gouji testified that she Sichimbo a Property Development Company Limited. Her evidence was that Mjumi James Banda worked at ZDA with a Supervisor Henan Gouji Development Company Limited in obtaining Certificates of Title at the Ministry of Lands, and that she had found him working there. 2.35 Mwakoyi Sichimbo also told the Court below, that when the Supervisor left, she was assigned to deliver documents to Mjumi James Banda, and that they had worked hand in hand. In that respect, she had explained that she would prepare the schedule, and give it to Mjumi James Banda. 2.36 This witness also testified that the agreement was that upon Mjumi James Banda completing the change of ownership for a property, he would be paid Three Thousand Five Hundred Kwacha (K3, 500.00). Mwakoyi Sichimbo also confirmed that Mjumi James Banda processed Two (2) Certificates of Title, and her testimony was that he did not obtain Certificates of Title for Thirteen (13) properties. J a m e B s an d a. Z a m b i R a e v e n A u u e t h o . r i t y . T h i w s i t n e a s l s s t o o l t d h e C o u r b t e l o t w h , a a t f t t e h r s e t a g e fo r t h p e r o p e r w t i i t e h T s i w n o ( w } e e k s . H o h w e d e i v t d e h r e , t h e M i n i s o t f L ry a n d fo s r l o d g n m t e . H e r e v i d e w n a c s t e h a t M j u m J i a m e B s a n d p a r o m i t s o e o d b t a C i e n r t i fi o c f a T t i e t s l e a t t h Z e a m b i R a e v e n A u u e t h o r d i o t c y u , m e w n e t r s t e a k e t n o n o t i c an e d s t , h e r y e a c h t e h d e s t a g o e f a s s e s s m a e t t n h t e t h e i y n c l u t d h e e d o n e fo s r w h i c h h e o b t a i d n e e m d a n d w a s g i v e d n o c u m e fo n r t T s w e n t y ( - S i p ) x r o p e r t t h i e e n s , a t t h Z e a m b i a R e A v u e t n h u o e r i t y . . S h e s t a t t e h d a i t f M j u m J i a m e B s a n d h a a d t e s t i t fi h e a d t h e . I t w a s M w a k o S y i i c h i m e b v o i ' d s e t n h c a e M t j u m J i a m e s B a n d m a a n a g t e o o d b t a g i r n o u r n e d n b t i l a l n s d a s s e s s m e n t . W h e n c r o e s x s a m i n M e w d a , k o S y i i c h i 's m t b e o s t i m w o a n s y t h a t T h i r t e ( e n ) p r o p e r w t e i r e e i s n v o l i v n e t d h e w h o s t e i t w l e e r a e s s i g t n o b e e c d h a n g w e e d r g , e i v t e o M n j u m i t r a n s a c b t u i t t o h n a s , t h w e a s n o s t u r h e o w m a n p y r o p e r t i e s 0 . 0 ) . a n d p a y me n t a s n , d w h e c n h a n o g f o e w n e r s w h a i s d p o n h e e , w o u d l b e p a i T d h r e T e h o u s a F n i d v H e u n d r K e w d a c h ( a K , D e v e l o p C m o e m p n a t n L y . m . t w e . i d t h d t r h e d e w o c u m e fo n r t s t h T e h i r t ( e e p n ) r o p e r fr t o i m Mj e u s m i J a m e B s a n d . S a h e s t a t t e h a t d M J . U m J a me s B a n d w a o u l d g i b v e d e o n c u m e n t s IL L . . m1 t d e w i h t d e r w · I s t , s e . r v fr i o c m e M s j u m i · T he n t h er ea f e t ' r Z DA H e n a G n o uj D i e v e l o p C m o e m n p t y a n J B a a m n e d , s a a n d M w a ko Y · I s I · h c i . m b o t e s t i t fi h e a d Z t D A H e n a n G O U J .. I J lO I ) I I or ert1ficates of a1ne from th M' . Jll Work partially, and what T. 1tle to be obt • d 2 42 M . . · wakoyi S1chimb I · o c anfied in re-examination that after there was remained was t C . e inistry of Lands. M. . Jumi Jam es Banda obtained the assessment, pressure from the 1 · c ient, and Mjumi James Banda promised that the Cert'fi 1 icates of Title would be ready in Two (2) weeks, but that did not happen 3. DECISION OF THE COURT BELOW 3.1 In the Judgment that was delivered on 21st May, 2019, the . that Mjumi into a verbal agreement, Court below found that it was not in dispute James Banda and ZDA Henan Gouji Development Company Limited entered in which Mjumi James Banda was to assist Company Limited to obtain in Silverest Gardens 3.2 It was also found the sum of Three Thousand 500.00) that Mjumi James Banda was to be paid (K3, of Title that he obtained. 3.3 Further finding was made, that Mjumi James Banda and that he was paid for each Certificate Two (2) Certificates in Chongwe. ZDA Henan Gouji Development Certificates of Title for properties Five Hundred Kwacha obtained of Title, The Court below still Mjumi James Banda had started of obtaining and that ZDA Henan Gouji Development for the remaining stated that Kwacha (K7, 000.00). Seven Thousand in its' findings, the process properties, that it h,ad with terminated Company Limited, James Mjumi Mjumi James Banda, and that thereafter, Banda was not paid any money. the agreement Certificates of Title - Jl2 3.4 The Court below went on to consider the validity of the agreement and r fi d ' e erre to Section 90 of the Lands and Deeds Registry A t c Chapter l 85 of the Laws of Zambia, and the decision · th m e case of Mutwale v Professional Services Limited (lOJ. It was the Cou t' fi d" James Banda had stated was not an advocate of the High Court, not qualified to do the job that he agreed Gouji Developme r s m mg, that the record that he was a framer. Therefore, he nt Company Limited. and as such, he was showed that Mjumi to do for ZDA Henan 3.5 3.6 Accordingly, by virtue of Section 90 of the Lands and Deeds Registry Act, what Mjumi James Banda had done was illegal. 3.7 The Court below, held transactions, nothing to do that the Courts have the agreement and it found that the payment including Kwacha (K3, 500.00), with illegal between Five Hundred Three Thousand unenforceable. was consequently was illegal, the parties and it of 3.8 Thus, the Court below held that Mjumi James Banda was to any payment, and the matter was dismissed not entitled with each party to bear their own costs. 4. GROUNDS OF APPEAL 4.1 Dissatisfied of Appeal, Notice with the Judgment, Mjumi James Banda filed a in which the following grounds of appeal were advanced: i. The Court below e"ed in law and in fact when it held that the agreement between the parties including the • Jl3 payment of K3, 500. 00 per certificate processed was unenforceable. ll. The Court erred in law and in fact when it failed to take of title that was into account that an agencyrelation between the Plaintiff and the Defendant. ship exi.sted 4.2 Mjumi James Banda filed heads of argument on 10th October, 2024, while ZDA Hen� Gouji Development filed its' head of argument in response on I Company Limited 1st November, 2024. 5. SUBMISSIONS AT THE HEARING SUBMISSIONS BY COUNSEL FOR MJUMI JAMES BANDA that they relied for Mjumi James Banda stated 5.1 Counsel on the heads of argument which were filed on 10th October, 2024 in their entirety. RESPONSE BY COUNSEL FOR ZDA HENAN GOUJI COMPANY LIMITED DEVELOPMENT submitted 5.2 In response, Counsel that they also relied on the heads of argument which were filed on 1st November, 2024. REPLY BY COUNSEL FOR MJUMI JAMES BANDA 5.3 There was no reply. BY THIS COURT 6. DECISION 6.1 I have considered the appeal. GROUND ONE 6.2 This ground of appeal alleges law and in fact, when it held that the parties, including the payment of Three Thousand between the Five that the Court below erred in agreement Ill ! - Jl4 6.3 of Title that was per Certificate was unenforceable. Kwacha (K3, S00.00) processed, In advancing this ground of appeal, Mjumi James Banda argued that the question for determination was whether or ' not, the Court below was in order when it framed its' own issue for determin other than what was pleaded by the parties ation, ' in their pleadings. 6 • 4 In that regard, reference in the last paragrap of Appeal, was made to page 66 of the Record h, stating that the Court in its' Judgment stated the following: "In the present case, the Plaintiff stated that he is a farmer. This clearly indicates to me that he is not an advocate of the High Court, and as such, he was not qualified to do the Job he agreed to do for the defendant. Going by Section 90 of the Lands and Deeds Registry Act, what the Plaintiff was doing was illegal. Courts have nothing to do with illegal transactions. I therefore find that the purported agreement between the parties, including the payment of K3, 500.00 per Certificate of Title is unenforceable." 6.5 Argument was made, that as noted from the affidavit verifying the debt, which was at page 7 of the Record of Appeal, as well as the affidavit in opposition, which was at page 13 of the said Record of Appeal, none of the parties had pleaded the issue of whether or not Mjumi James Banda was J15 6.6 6.7 eJob that he a 0Prnent Co greed to do on behalf of ZDA mpany L1m1ted. . . gu ed that none f th . ity of the contract Th qualified to do th H enan Gouji Devel It Was further ar . issue of illegal. that the Cou t f own v rt· what th It was stated th h. Courts with th ' Electricity s 1 on, stating that the Court in that matter held that: r ramed its' 0 · . o 1 ion, and deter . d e parties had brought for determination o - e parties had raised the · us, the contention was wn issue for determination . on its' mine the said issue, contrary to at t is was frowned upon by the higher e case of Atlantic Bakery Limited v Zambia Upp Y Corporation Limited flBJ being relied . . . . . "Put differently, a Court should confine its decision to the questions raised in the pleadings. It can thus not grant relief which is not claimed. Litigation is for the parties; not the Court. The Court has no business extending or expanding the boundaries of litigation scope defined by i.e parties in their pleadings. beyond the In other words, a Court has no jurisdiction to set up a different or new case for the parties." 6.8 Reliance was further placed on the case of Richard H. Chama & 213 others v National Pension Scheme Authority fl6J where the Supreme Court stated that: "As there was no disagreement whatsoever as to the kind of occupational pension scheme subsisting between the parties, the learned judge had no business creating issue over the undisputed ■ s u h t e . e W t v i l o s e r o t i g d n e e oc r p n e th d n a s t c a f ts an l l e app e h t r o l f e s un o c d e a rn e l e th th i w e re g a d c e a h e r er v o e g d t ju r u o -c r e w o l d e rn ea l he t t a h t e t d c i ra d t n o h c c i h g w n i d n fi a g in k a m n i lf e s im h l6 J d e t i m y i n L t a n p e m m o p C o l e v i e j D u o n G a n e H A D Z f f o l a eh b e l b . a e fo c n r l e s a n a g u r w e o l t l c i a r t n o e c , h t t o n e r o h r t e h w r o o n s e a r w e h t t a d h e t u g r o a s l a a d n a B s e m a J i m u Mj . i um , j t M r o e n r h o t , e s h e w n i o t r a e p e h e t w n t e t b n e e e m r g s a i d n d o i d e t h a h b t o e j h d t o e d o fi t i l a u q s a w d a n a s B e m a J o s n e a r , w e r h e t t t s a i m h y t l · l m r l a m · · s t h a t s a w t en m rgu e a h T . ,, . i n t o i s d o e p e r g a n s w e o i ' t r a p e h t t a h t r e h t r u t s f n a e w m u . g s r e e a c h i T v r e e d t s i i v o r p o a t d n a B i j u o n G a n e H A D t s Z a e h i t t r a n e p e h e t w t t e n b e m e g e a r s i d s e m a i J m d u e j g M a g n d d e e a t h i m y i n L a p m o t p C n o e l m e v e D i m u j d M d e e w t o i m y i n L t a n p e m m o p C o l e v i e j D u o n G a n e H A t D a Z h y t e n o t m f n o u o , m n e a o h s i t a t w n e t n s o a c n w i t a h w . a d n a s B e m a J d e t c i d a r t n o t c a g h n t i d n g fi n a i k , a f m l n e i d s e t h i c a e r e r v o t r , u w o o C l e b e h t t d a e h d t n e t n o c s , a e w t r i fo e r e h T . e h t t d a e h t t r a e t h s t r u . s f d a e t w d I a e l s d p e a i h t r a e p h t t a h w e h t s f m o r e e t h y t o c t a c ffi e e v i g o t s , a t w r u o e C h t f e o l o r e h t t a d h e t u g r a s , a l t w a i e p p d a f n o u o r t g s r e fi h l t n l o i t S . . s e i t r a e p d h n t u h , o c t b i c h a w r t n o c t n e m e e r g r e a e h h n t t o e i h t s w a a n w i m r e t e e d r u fo s d s n i o c e s i j u o n G a n e H d A n D a Z a d n a s B e m a i J m u n j e M e w t e b . e l b a e c r fo n e n d s u e a t w i m y i n L t a n p e m m o p C o l e v e D --- J17 6.13 t m paragraph 3 of the affidavit The submission was tha . opposition, it had b d een eposed that Mjumi James Banda was engaged b ZDAY Henan Gouji Development Company Limited as an agent to assist with the processi ng of Certificates ior ouses 1n S1 verest Gardens m . ·1 Chongwe. of T1·t1e " h . . m 6-14 Therefore, it was clear that ZDA Henan Gouji Development and that it did Company Limited had capacity so voluntarily to contract, with Mjumi James Banda. and willingly 6 • 15 Reliance was placed on the decision that was made in the case of Printing & Numerical Registering Sampson t2J which decision Colgate Palmolive Zambia Inc v Abel Shemu Chuka & 110 others fllJ. was approved Company v in the case of 6.16 That decision was that: ''if there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting, and their contract when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice." 6.17 Also cited as authority in that regard, was the case of Peter Militis v Wilson Kafu.ko Chiwela f12J. 6.18 In response, ZDA Henan Gouji Development Company Limited referred to Chitty on Contracts at page 1 stating that it sets out what amounts to a valid contract, as: ., Jl8 "A promise or a set o enf orce and wh· h ic are enf or, d if promises which the law will gwzng nse to obligations an agreement . . . ce or recognised by law " . . urther sacrosanct, that specific n exiStence and have to be fully satisfied 6 1 I . 9 t was also argued, that it is f e ements must be i . in rder for a contract to be valid being: � t. Offe r and acceptance; ii. Consideration•, iii. Intention s. to create legal relation 6-20 The argument was that, as could be seen from the record of proceedings, it was agreed that ZDA Henan Gouji Development Company Limited agreed to pay Mjumi James Banda the sum of Three Thousand (K3, 500.00) for each property, proces.sed, Five Hundred Kwacha of Title was successfully where a Certificate after the agreement was entered into. 6.21 Therefore, there was an offer, acceptance, and valid consideration passed between the parties, as well as the intention to be bound by the agreement. 6.22 However, the contract had to abide by the law, and as it was it was unenforceable. illegal, Contracts Volume 1 General Principles In that regard, at page 839 was Chitty on relied on, as stating that: "Illegality may affect a contract in a number of ways, but it is traditional to distinguish between (1)illegality as to formation and (2) illegality as to performance. Broadly speaking, the first refers to Jl9 , a situ ti a on where the contract is illegal it is formed, whereas the latter involves which on its' face is legal, but which is performed in a manner which is illegal." a contract at the time 6-23 Going by the above, it was argued that the contract between ZDA Henan Gouji Development James Banda was illegal below was on firm ground, in declaring illegal and unenforceable, pursuant from the onset. the Court Therefore, was that the contract Company Limited and Mjumi to Section 90 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia. 6.24 It was further argued that Mjumi James Banda was contracted to perform illegal acts, and in pursuance of that illegal agreement, it would be noted from pages 23-24 of the Record of Appeal, that Mjumi James Banda's obligations under the contract, included obtaining State consent to assign, processing assessments at the Zambia Revenue Authority for Property Transfer payment of fees to assign the properties Tax, and ensuring at the Ministry the of Lands, as well as ultimately acquiring duly processed Certificates of Title. 6.25 It was argued that these steps that Mjumi James Banda took under the contract, in exchange for payment, were contrary to Section 90 of the Lands and Deeds Registry Act, which states that only a Barrister or a Solicitor can perform such acts on behalf of a party, in exchange for any monetary payment or other benefit. ■ J20 6.26 The argu ment was th t . . Court Will lend its' aid t action upon an immoral ·11 . • a ' it is the position of the law, that no 0 a man who founds his cause of or 1 egal act. 6.27 Cited as authorit t Y O support that position, was the case of Holman v Johnso (BJ n at page 343 as having stated that: "The principle of public policy is this; ex dolo malo non oritum action. No Court will lend its' aid to a man who founds his cause of action upon an immoral or illegal act. If, from the Plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive defendant, law of this country, there the Court says It is upon that he has no right to be assisted. ground the Court goes; not for the sake of the but because they will not lend their aid So, if the plaintiff and the to such a plaintiff. defendant were to change sides, and the defendant was to bring the action against the plaintiff, latter would have both are equally in fault, potior est conditio deferentis." the advantage of it; for where the 6.28 In still arguing, it was stated Holman v Johnson f8J was applied State Insurance Pension Trust v Zambia Extracts Oils that the decision in the case of Zambia in the case of and Colourants Limited and another f14J. 6.29 The argument was that Section 90 of the Lands and Deeds Registry proscribes persons who are not Barristers or J21 and Solicitors f ' rom providing conveyancing services conveyancing processes on b h e alf of another person. Consequently, that Act contemplates making of contracts for the prov1·s1·on services under the Act, by persons who are not Barristers or Solicitors. 5.30 The case of Wetherell and prohibits the v Jones (lJ was relied cited in the case of Zambia State Insurance on, which was Pension Trust . o conveyancing f v Zambia Extracts Oils and Colourants Limited and another (14J. 6.31 It was stated that the said case held that: "Wh ere a contract which the plaintiff seeks to enforce is expressly or by implication forbidden by the statute or common law, no Court will lend its' assistance to give it effect ..... but where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract in the performance of something to be done on his part." 6.32 Therefore, the argument was that the above case demonstrated that performance under a of one's obligations contract ought to be within the confines of the law, and that where such obligations required one to do an illegal act, such contract would be illegal and unenforceable. J22 - 6.33 As regards the contentio . . . n by MJumi James Banda that the Court below erred • 1 m aw by framing its' own issue for determination th h ' 0 er t an what had been pleaded by the parties, reliance w I d as P ace on the case of M'membe and the Post Newsn r-apers imited (in liquidation) v , I emg argued that the Supreme L a nd others fl9J ·t b · that matter held that: Court m Mboozi "it is an age old and well-established principle that every Court has power to act ex debito justice [as of right) to ensure that it exits for real and substantial administration of justice." 6.34 Accordingl y, it was stated that the Court has an overriding duty to exert justice, as opposed to confining itself to trivial matters, that would lead to outcome that possessed no legal basis. Therefore, it was contended that Mjumi James Banda's argument that the Court below erred in framing an issue for determination which had not been pleaded, was likely to perverse the course of justice. 6.35 Thus, the position below that was taken was that, the Court was at all times, entitled to pay regard to such, even though it was not pleaded by the parties, as doing so, would ultimately lead to the fair administration of justice. 6.36 Ground one revolves around whether the Court below erred in law and in fact, when it framed the question for I determination with reference and Deeds Registry Act and asking Banda could legally perform what he was contracted to do, to Section 90 of the Lands whether Mjumi James • J23 by ZDA Henan Gouii D l . with that provision f th 1 challenged the legality under the under contract. � eve opment Company Limited, 0 e aw, when none of the parties of Mjumi James Banda to perform in line had 6.37 It is trite that parties are bound by pleadings . In the case of Christopher Lubasi Mundia v Sentor Motors Limited f9J it was held that: "The function of pleadings is very well known, it is to give/air notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. Once the pleadings have been closed, the parties thereto are bound by their pleadings and the Court has to take them as such." 6.38 The decision in the case of Atlantic Bakery Limited v Zambia Electricity Supply Corporation Limited f18J which was relied on by Mjumi James Banda, was that the Court has no business deciding a matter beyond the scope of the pleadings that are filed by a party. 6.39 It is however also trite, that proceedings before the Subordinate Court are summary, and as such Order VI Rule 1 of the Subordinate Court Rules, Chapter 28 of the Laws of Zambia provides that: "1. Except where otherwise every by law provided, suit shall be commenced by writ of summons issued by the clerk of the court. -• , t u b ; s g n i d a e l p t u o h t i w r e n n a m ry a m m u s a n i d e n i rm e t e d d n d a r a y e h l e i b r a n i d r l o l a h t s i u S . " " . s n o m m u s f t o i t r l w u a f e h d c u s f t o r a p s a : t s a e h s t e t l a u t R s d i a s e h t f o e l u R vm r e d r n O e h T . s e c n a t s m u c r i c d n e a r u t a n e h t t a ) h s t e t u n i m e h t n i d e d r o s ec n r o s a e r r o t {f r u o c e h t s o r t a e p p a t e i r e h w s t f s o e r e t n i e h t t n n i e i d e p ex t r i e d n e e r s a c y n a f o iff t n i a l p e h r t e d r o y a t m r u o c e h , t o s o d e o c t i t s u j y a m d n , a m i a l c s i h t f n o e m e t a n t e s t t i r w a e l ft. o t n e t t i r w a e l ft. t o n t a d n e f e d e h r t e d e r s o i w e k i l t n e m e t a t s a f g o n i l fi . e e Th c n e f e d s i t h n f o e m e t a t s t l u a f e d a e l f fi y f a i m t n i a l p e h , t d n a d m e e t d a d i u q i l m r o f a r o d , e rm b fo i r c s e r p e h t n s i n o m m u s f t o ri w f g o n i l fi e h t f o e m i t e h t t a d , n t a c e f f e e k i l e h t o t d n a d n a m e d r o t b e d h c g u n s i fy i r t e i v v a d fi f a n a e l l fi l a h s s n o m m u s f o t ri t w l u a f e d h c u s r t o b e d a t f c o e p s e r n i s m i i a l c e h t n e h W ) ( . " f e o s o rp u p e h t r , o l f l a t h i s v a d fi f a h c n u o s p u e r e h t s y a l w l a d n e i t a e r , t t e n b a d n e f e d e h t n o e p c u i v r e s s s i e l u d R i a s e h t f ) o l f e l t u a R h n t e e r s e e b h t r l fu l t wi I . : n o i s i v o r s p n w i o l l fo s a . re i qu e r r J24 e e h l t o b t a c i l p p a e b y a m t s c a e r. J r J . e k e i l e h t o t e n o h c u s n i e l b l a h s s n o m m u s " 'J o it r W e r l o u d e h c t S s r i F e h t n i s rm. o r. J d be i r sc e r p e t h s rm o f f o y a s m e c n s a m t u c r i s c n s o a i t a i r a v h c u s h t i w e s a c ry ve ) E ( . "3 · t ha t es a t t s s le u R id a s e h t " 'J o l) { 3 e l u e , R r h t r Fu 6.4 J25 of claim shall not necessitate, unless the court so . directs, that t a s aternent of defence shall also be filed. The order may e made at any stage of a suit either before or at the hearing." b 6. 43 In this matter th , e commencement was by Default of Writ of Summons which was accompanied by an affidavit. affidavit in opposition was filed. Thus, those documents out the positions of the parties in this matter. set An 6.44 The Court below found that both Mjumi James Banda and Company Limited ZDA Henan Gouji Development that they entered into an agreement as alleged by Mjumi agreed James Banda. This was supported that by the averments were made in both the affidavit of which was filed in support the Default Writ and the affidavit in opposition. 6.45 What was disputed was the terms of agreement, with regard to Mjumi James Banda's 6.46 From the agreement, indeed there was an offer which was payment under the agreement. made by ZDA Henan Gouji Development it to process to Mjumi James Banda to assist in Silverest Title for properties in Chongwe, which Mjuimi James Banda accepted. which are situated Certificates of Gardens Company Limited 6.47 The evidence that was led in the Court below, was further that was made, that Mjumi James that there was agreement Banda would be paid for the work that he would do under the agreement to create . Thus, there was consideration legal relations. and intention J26 was clear, that there c on the face of it. was a valid contra t . , m1 ames Band J 6.48 From this, the Court b 1 e ow found that it 6.49 Based on this MJ·u should h b the legal requirements. However ZDA He G .. argued that the contract was illegal in line with Section 90 of the Lands and Deeds Registry Act Chapter 85 of the Laws of Zambia. ave een enforced b th Y e Court below, ' nan OUJ1 Development as it met all 6.50 Company Limited a argued that the contract 6.51 That Section provides that: "90. Any person who, not being a barrister or solicitor, transacts any business under this Act/or and on behalf of any other person/or fee or reward shall be guilty of an offence and liable to a.fine not exceeding one thousand five hundred penalty units: Provided that nothing contained in this section shall apply to a Government officer acting in the performance of his duties as such." 6.52 The above provision of the law is very clear. It proscribes any person, other than a Barrister or a Solicitor from transacting any business under the Act on behalf of another person. Phrased differently, the provision allows persons to transact business under the Act for their own benefit, and not on behalf of another person, if they are not a Barrister or a or. Solicit l J27 ' ws that Mjumi James 6.53 The record of the C ourt below sho e, at he 1s a B . e was so, at the ti Banda did not stat th arnSter or a Solicitor or that h me of the transaction. The record s ows that he indicated to the Court below' that he was a h farmer' when he was all d . . at . tnal, as seen at page 23 of the Record of Appeal. c e upon to give his particulars 6.54 It is also very 1 f c ear rom the record, agreed to process Certificates Gouji Development Company Limited. of Title on behalf that Mjumi James Banda ofZDA Henan That agreement entailed that he would transact business under the Lands and Deeds Registry Act, whose procedure for obtaining Certificates of Title is spelt out under the said Act. 6.55 Mjumi James Banda argued that the Court below considered the provisions of law in Section 90 of the Lands and Deeds Registry Act when none of the parties had pleaded illegality of the contract. 6.56 Indeed, the Court below did consider that position of the law when it arrived as its' decision. Thus, the question is whether the Court below erred in doing so. 6.57 I have stated the effect of Section 90 of the Lands and Deeds Registry Act as proscribing persons who are not Barristers or Solicitors, from transacting any business under the Act for and on behalf of any other person for a fee or reward. 6.58 Thus, by agreeing to obtain Certificates of Title on behalf of ZDA Henan Gouji Development Company Limited when Mjumi James Banda is not a Solicitor or a Barrister, he J28 contrave ned the law in Section 90 of the Lands and Deeds Registry Act. 6.59 ZDA Henan Gouji Developme nt Company Limited relied on the cases of Holman v Johnson fBJ, Zambia State Insurance Pension Trust v Zambia Extracts Oils and Colourants Limited and another f14J and Wetherell v Jones f lJ whose effect was that the Courts will not enforce illegal contracts. 6.60 They further argued that an agreement may be illegal in its' formation or illegal as to performance. 6.61 A contract will be illegal if it contravenes legislation or the common law. 6.62 Halsbury's Laws of England, 4th Edition Re-Issue, Vol 9 in paragraph 386 states that: "There are several classes of contracts which though perfect as to form, agreement and consideration are not given full effect because they offend of the law. Some contracts may be illegal in the sense that they involve the commission of a legal wrong, whether by statute or the common law, or because they offend against fundamental principles of order or morality. Less objectionable contracts may simply be void by common law or statute." 6.63 The facts of this matter, reveal that Mjumi James Banda and ZDA Henan Gouji Development Company Limited agreed for Mjumi James Banda to do illegal acts, as he was not J29 qualified to perform any transactions Deeds Registry Act on behalf of ZDA Henan Gouji Development under the Lands and Company Limited, at a fee, as he was not a Barrister or a Solicitor. 6.64 In the case of Bigos v Boustead f6J, the facts of that case were that in 194 7, the defendant was anxious to send his wife and daughter abroad for the sake of the daughter's health. 6.65 Owing to the restrictions on English currency which were then in force, he was unable to obtain from the Treasury what he considered an adequate allowance to enable them to stay abroad sufficiently long for the visit to be of benefit to the daughter. On 25 August 1947, he entered into an agreement with the plaintiff, in contravention of the Exchange Control Act, 1947, s 1(1), whereby the plaintiff agreed to make available £ 150 worth of Italian money for the wife and daughter in Italy within a week, and the defendant promised to repay her with English money in England. 6.66 As security for his promise, the defendant plaintiff a share certificate for 140 shares deposited with the in a company. On 28 August the defendant's wife and daughter went to Italy, but the plaintiff failed to make any Italian money available for them, and on 13 October they returned to England, sooner than money. they would have returned if they had had the 6.67 The defendant share certificate, then asked the plaintiff but she refused to do so. to return to him his J30 68 In an action by the pl · t'ff 6. ain 1 to recover the defendant on the ground th t h h d him of that sum, the defendant the true f acts of the transaction, and counterclaimed return of the the sum a s e a made a loan to denied the loan, and set out for the of £150 from certificate. 6.69 The plaintiff abandoned the hearing of the action, his counterclai her claim at the commencement of but the defendant proceeded with was an illegal m, and contended that, although one, as it was still executory, he was allowed the contract a locus poenitentiae, the return of the certificate. and, therefore, he was entitled to claim 6.70 It was held in that matter that: "The reason that the illegal transaction was not carried out was due, not to any repentance on the part of the defendant, but to the frustration of the of the share as the and, therefore, contract by the plaintiff, agreement relating to the deposit certificate was one which sprang from the main illegal agreement and was tainted with the same illegality as that which attached to that agreement, and as the parties were in pari delicto at the time of making defendant was not entitled to seek the aid of the court to recover the certificate." the agreement, the 6.71 Then in the case of Cope v Rowlands f4J, an Act made it Cope set up s to deal without for stockbroker a licence. illegal business in London without obtaining a licence. As a result, J31 when he sued Rowland for payment for work done, the claim failed. This was on· the basis that his lack of a licence made the contract illegal 6.72 The above illustrates the position and unenforceable. of the Courts when it . The Supreme Court in the case of comes to illegal contracts , Hiteshbhai Patel v Agyen-Frempong Kofi and Agyen­ Frempong Osei SCZ flSJ stated that parties should be presumed to contemplate a legal rather than an course of proceedings when transacting. illegal to a contract 6.73 Therefore, the decisions that I have just referred to, and the decisions that were relied on ZDA Henan Gouji Development Company Limited clearly establish , that the Courts will not enforce illegal agreements. 6.74 Accordingly, while Mjumi James Banda and ZDA Henan Gouji Development Company Limited entered into an agreement under which Mjumi James Banda agreed to process Certificates of Title for ZDA Henan Gouji Developmen t Company Limited in exchange for payment, that agreement contravened Section 90 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia. 6.75 It was therefore illegal, as correctly found by the Court below, as Mjumi James Banda was not a Solicitor or Barrister at the time. 6.76 He therefore could not carry out any transactions under the Act on behalf of ZDA Henan Gouji Development Company Limited. J32 6.77 In supporting this finding, the Court below looked at evidence that Mjumi James Banda gave with regard to his profession, which was that he was a farm er. 6.78 In upholding that finding, I am alive to the decision in the v The State Lotteries Board f7J which was case of Sithole that: "Where an appellate court is in as good a position as a trial court to draw inferences it is at liberty to substitute its own opinion for any opinion which the trial court might have expressed." 6.79 The record of the Court below supported the finding that it made, as I have earlier stated, going by page 23 of the Record of Appeal, which shows that Mjumi James Banda told the Court below that his occupation was a farmer. Accordingly, Ground One of appeal fails, and it is dismissed. GROUND T WO 6.80 This ground of appeal alleges failed law and in fact, when it that the Court below, to take into account erred in that an existed agency relationship between Mjumi James Banda and ZDA Henan Gouji Development Compa n y Limited. 6.81 The argument was that the issue for determination on this ground of appeal, is whether there was an agency relationship between Mjumi James Banda and ZDA Henan Gouji Development Company Limited. 6.82 It was stated that as seen from the arguments in relation to the first ground of appeal, ZDA Henan Gouji Development Company Limited, engaged Mjumi James Banda as its' agent J33 to assist with the processing various properties in Silverest Gardens in Chongwe. of Title for of Certificates 6.83 The case of Bidvest Food Zambia Limited and 4 others v CAA Import & Export Limited (17Jwas relied on, as having defined an agent as: "An agent is understood to be someone who acts on behalf of another in bringing about or performing a contractual obligation on that other's Volume 2, Specific Contracts, 27th behalf." 6.84 Chitty on Contracts Edition, Sweet & Maxwell, 1999 at page 2 in paragraph 31-001 was also relied on, as regards the definition of an agent, which states that: "At common law, the word agency can be said to represent as body of general rules which one person, the agent, has power to change the legal relations of another, the principaL The full paradigm relationship of principal and agent arises where one party, the principal consents that another, the agent, shall act on his behalf and the agent consents so to act. The consent is said to confer authority on the agent and from this authority stems the power." 6.85 It was repeated that ZDA Henan Gouji Development Company Limited engaged Mjumi James Banda to assist with the processing of Certificates of Title for various properties in Silverest Gardens in Chongwe, adding that Mjumi James Banda consented. J34 l 6_g6 Th e argu ment was that the consent that Mjumi James Banda gave, conferred him with authority to perform that job that ZDA Henan Gouji Development Company Limited requested him to do. Thus, there was an agency relationship between ZDA Henan Gouji Development Company Limited and Mjumi James Banda. 6.87 In still arguing, it was stated that the second issue for determ i nation on this ground, was whether or not, Mjumi James Banda was entitled to be paid the sum of Thirty-Three Thousand Four Hundred Kwacha (K33, 400.00) for the services that he rendered. 6.88 Mjumi James Banda's argument was that ZDA Henan Gouji Development Compa n y Limited terminated the agreement i th him, after he had done some work on behalf of ZDA w Henan Gouji Development that Mjumi James Banda contended Development Company Limited Compa n y Limited. It was stated that ZDA Henan Gouji did not pay him for the services that he rendered 6.89 He argued that under the despite law of agency, for the work that they remunerated numerous do on behalf of the an agent has to be reminders. principal. 6.90 Reliance in support of that argument, on the case of Esquire Roses Limited v ZEGA Limited (l3J, stating that o llows: the holding in that case was as f was placed "It is also trite law that in an agent and principal relationship (as it was in the current case), the agent is entitled to remuneration for the services J35 This is a cardinal rendered to the principal. principle of the law of agency." 6.91 Mjumi James Banda's contention the agency relationship completed their tasks, for the work that they had done. the agent was still was that in the event that was terminated before an agent entitled to be paid 6.92 The cases of Kennedy v Glass f4J and Way v Latilla fSJ were relied on as authority, to be paid on a quantum meruit basis. that Mjumi James Banda was entitled 6.93 ZDA Henan Gouji Development Company Limited in to this ground of appeal, responding of agency in Chitty on Contracts Volume 2 Specific Contracts at page 1 which is: relied on the definition "At comm.on law, the word agency represents a body of general rules under which one person, the agent, has the power to change the legal relations of another, the principal. " 6.94 The Law of Agency 6th Edition, by G. H. L Fridman, 1999 was further referred to, which defines agency as: "Agency is the re�tionship that exists between two persons when one called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to effect the principal's legal position in respect of strangers to the relationship by the making of contracts or the disposition of property." J36 6 95 It was argued that for there to b · . between two people, it entailed th t th h a third party' whose rights and obl' t· derived from the principal party. e an agency relationship a ere ad to equally be iga ions were owed and 6.96 Reliance in so arguing, was placed on the case of Bidvest Food Zambia Ltd and others v CAA Import and Export Limited (I 7J where the Court stated that: "At the very elementary level, and agent is understood to be someone who acts on behalf of another in bringing about a contractual obligation on that other's behalf. Thus, in contracts for the sale of products, such as the one implicated in this appeal, the agent would have authority to enter into contracts of sale of products on behalf of the supplier. In other words, the contract of sale will be between the supplier and the customer with the agent merely acting as an intennediary and receiving remuneration by way of commission, typically a percentage of the price for his or her labour." 6.97 In this matter, by Mjumi James Banda acting on behalf of ZDA Henan Gouji Development Company Limited to process Certificates of Title in Silverest Gardens in Chongwe on its' behalf, he acted as its' agent. 6.98 The affidavit which was filed in support of the Default Writ of Summons in the Court below, and the affidavit in J37 opposition, show that it was agreed that Mjumi James Banda would be paid for doing such agency work. 6.99 However, l have upheld the decision by the Court below which was that Mjumi James Banda could not carry on that work on behalf of ZDA Henan Gouji Developm ent Company Limited at a fee, as he was not a Solicitor or a Barrister at the time. 6. l 00 l have also found that the Court below did not err in finding that as the agreement between Mjumi James Banda and ZDA Henan Gouji Development Company Limited was it was unenforceable, and Mjumi James Banda could illegal, not claim under it. 6.101 This is because, Mjumi James Banda, as an agent for ZDA Henan Gouji Development transactions to conduct Company under Section 90 of the Lands Limited had no capacity and Deeds Registry Act, Chapter 185 of the Laws of Zambia, as he was not a Barrister acts. he was doing illegal therefore, ground two of the appeal dismissed. and is that The net result ngly also fails. It is accordi or a Solicitor, L J38 1. CONCLUSION 7 .1 All the grounds As the parties of appeal having failed, they are dismisse d. entered into an illegal contrac t, I uphold the decision of the Court below that each party would bear its' own costs. Leave to appeal is granted. DATED AT LUSAKA THE 23rd DAY OF JULY, S. KAUNDA NEWA HIGH COURT JUDG